The Independent Review into Serious Incidents and Deaths in Custody undertaken by Dame Elish Angiolini is an important work, making 110 recommendations for improvement. The following paragraphs address some of the key-findings relevant to the police
On 23 July 2015, the then Home Secretary, the Rt. Hon Theresa May MP announced a major review into deaths and serious incidents in police custody. In October 2015 Dame Elish Angiolini was appointed as its independent chair.
The independent review was tasked with looking at the issues surrounding deaths and serious incidents in police custody. This included the events leading up to such incidents as well as existing protocols and procedures designed to minimise the risks. It looked at the immediate aftermath of a death or serious incident and the various investigations that ensue. Importantly it also examined how the families of the deceased are treated at every stage of the process.
The report, which was published on 30 October 2017, makes 110 recommendations for improvement, categorised under twelve thematic headings: restraint, custody environment, health and wellbeing, funding for families and family support, communications, investigations, coroners and inquests, accountability, training, learning, statistics and research.
A number of the recommendations and identified shortcomings are likely to have a material impact on the conduct of investigations in serious incidents and deaths in custody. The extent of public scrutiny and an increased emphasis on institutional and personal accountability is likely to impact on the prevalence of associated criminal and misconduct charges.
In respect of the IPCC (the soon to be Independent Office of Police Conduct (IOPC)), the report found that there is still a view among many families of those who have died in custody that the IPCC does not feel independent of the police or of police culture. The report recommends that ex–police officers should be phased out as investigators within the IPCC. It suggests that to the extent that the IPCC still consider that policing expertise is required, ex-police officers should act as consultants but should remain outwith the organisation itself.
It could be argued that the positive exclusion of ex–police officers from the independent investigating body risks creating an environment of unrealistic expectations, based only on a theoretical understanding of modern day policing.
The report identifies the prevalence of unnecessarily long and protracted investigations and recommends both increased investigatory resources and the creation of a specialist Deaths and Serious Injuries Unit within the IPCC. The establishment of this unit could be beneficial and would maximise institutional knowledge and expertise in dealing with the most complex and emotionally charged investigations.
The report argues that police practice must recognise that all restraint has the potential to cause death. It identifies that currently there is no consistency of training in restraint techniques across the 43 police forces in England and Wales. The report recommends that there should be mandatory and accredited national training and refresher training for police officers in restraint techniques and supervision of vital signs during restraint.
To some extent there is already a standardised, nationally accepted basis for training contained in the College of Police Personal Safety eManual. The modular training enables police services to deliver nationally accredited training whilst recognising that the training provision varies from force to force dependant on the nature of the tactics taught and equipment issued.
The report notes that in all investigations it is important to capture, as soon as possible, the individual accounts of any eye witnesses or witnesses of fact, uninfluenced by the recollections or perceptions of others. It recognises that the appearance of, or opportunity for, collusion can undermine public confidence in the subsequent evidence of police officers. The report therefore recommends that officers involved in a death in custody or serious incident, should not confer or speak to each other following that incident and prior to producing their initial accounts. An article published in this blog in September 2017 addresses the question of “separation” following a fatal incident – see our blog here.
More generally, the report distils the benefits of closer multi-agency working and encourages that IPCC, CPS and HSE meet very early following a death in police custody to review the emerging evidence, and take an early view as to whether criminal charges including health and safety charges or corporate manslaughter might be a possibility.
Chapter 13 of the report focuses on police misconduct. It recognises that the vast majority of police officers conduct themselves with integrity at all times. Uncontroversially, the report suggests “…where things do go wrong, the public have a right to expect that the actions of police officers are properly investigated, and where there have been failings on the part of the police, that these will be dealt with appropriately.” The report addresses six areas of concern relevant to misconduct investigations: (i) conduct investigations; (ii) witness statements and interviews; (iii) suspension; (iv) ‘misconduct’ and ‘gross misconduct’; (v) family engagement; (vi) sanction.
The report identifies a perception amongst: “…some campaigners… that there is reluctance on the part of the IPCC to consider criminal or disciplinary offences in contrast to the treatment of civilians, who, they believe, are more likely to be subject to a criminal investigation by the police if they meet the same threshold.” The report reminds the IPCC of the need to take a more robust approach to decisions on conduct investigations. The suggested, more robust approach, combined with an enhanced desire for public accountability may well lead to a greater number of cases being referred for criminal or misconduct charges.
Witness statements and interviews
At paragraph 13.8, Dame Elish articulates an uncontroversial view that interviews, either under caution where there is suspicion of criminality by the officer, or more generally when the police are deemed at that stage to be witnesses, must be carried out promptly by the IPCC. The report considers that the providing of a full and candid statement at the earliest opportunity should be part of a police officers duty unless they are a suspect. Further it recommends that consideration should also be given to such statements being given to the IPCC in response to questioning by the IPCC investigator rather than written up in private by the officer in his own time. This approach seems to deviate from the accepted norms in most investigatory forums. Indeed, a requirement that an officer, acting as a witness, only be permitted to provide a statement in response to questioning by the IPCC investigator may adversely lead to officers choosing to refuse to answer questions and/or significant delays in the provision of an account.
The report encourages the IPCC to consider making a formal written request for the restriction of duties (in misconduct investigations) and the suspension of officer pending the outcome of gross misconduct and/or criminal investigations if the police have not already taken this action.
‘Misconduct’ and ‘gross misconduct’
The report identified an apparent lack of clarity surrounding the distinction between ‘misconduct’ and ‘gross misconduct’ and the decision making process that determines whether an officer has a case to answer and at what level. It therefore recommends that, in the interests of transparency and public confidence it would be useful to have greater specification about the criteria used by investigators to make their decisions. It further recommends that the decision on what categorisation the alleged conduct falls into should be taken by the director of a specialist deaths investigation unit rather than by the lead investigator (see above where the recommendation for a specialist deaths investigation unit is referenced).
The report recommended that the Government should consider a family’s ability to engage with the proceedings at a misconduct hearing. This is to be combined with a consideration of providing advance disclosure of evidence to family members recognised as interested parties. The potential for families to be involved at the internal misconduct hearing, possibly to the extent of an entitlement to instruct counsel and engage in direct questioning, would represent a sea-change in misconduct proceedings.
The report found that there has been some concern raised by families of the deceased that appropriate sanctions do not follow where gross misconduct has been demonstrated. In other words that dismissal does not automatically follow. The report recommends that: “Once clear criteria have been made open and transparent, dismissal should always follow findings of gross misconduct unless there are wholly exceptional circumstances which justify a different sanction. Such exceptional circumstances must be fully explained to the family.” It might be thought, however, that is contrary to established authority on the subject of misconduct sanctions. Any fettering of a panel’s decision on the appropriate outcome would potentially undermine the the fairness of proceedings. Further, a perceived need to justify any outcome to a family may potential impede the panel’s independent considerations.
The Government’s Response
On 30 October 2017, the government published a response to the review. In the foreword to that response the Home Secretary outlines the governments intentions to: (i) “…review the existing guidance so that it is clear that the starting presumption is that legal aid should be awarded for representation of the bereaved at an inquest following the non-natural death or suicide of a person detained by police or in prison…”; (ii) “…implement legislation later this year to extend the disciplinary system to former officers so that, where serious wrongdoing is alleged, an investigation and subsequent disciplinary proceedings can continue until their conclusion, even where an officer has left the force.” (iii) “…make publically available a statutory Police Barred List of officers, special constables and staff who have been dismissed from the force and are barred from policing.”: (iv) “…[implement] regulations to restrict the use of police stations as a place of safety for people aged 18 and over.” In addition to these immediate steps the Government has commissioned the Ministerial Council on Deaths in Custody to play a leading role in considering the most complex of the recommendations.
It seems likely that the Ministerial Council on Deaths in Custody which will consider the ‘more complex’ recommendations and changes will start to permeate in 2018.
In the context of ‘police misconduct’, the implementation of the recommendations will likely lead to great scrutiny of the independent investigating body, whether the IPCC or IOPC. The inevitable impact will be an increase in the number of cases being referred as ‘gross-misconduct’.
A more robust investigatory system can only be a positive step. After all, the public have a right to expect that failings on the part of the police will be dealt with appropriately. However, it is essential that the robustness of the investigation and a need for accountability does not lose touch with the complexities of modern day policing, that any process remains rooted in a starting presumption that the majority of police officers conduct themselves with integrity (otherwise considered a presumption of innocence) and that misconduct proceedings are investigated and conducted in the wider public interest. That is to ensure that officers who have misconducted themselves are held to account but that officers who have behaved properly are not treated unfairly.